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Allen v. State

Court of Appeals of Georgia, Second Division

May 3, 2018

ALLEN
v.
THE STATE.

          MILLER, P. J., ANDREWS, J., and SENIOR APPELLATE JUDGE BEASLEY

          Miller, Presiding Judge.

         A jury convicted Laverne Lee Allen[1] of incest, rape, child molestation, and aggravated child molestation, stemming from his sexual abuse of two of his children. Allen now appeals from the trial court's denial of his motion for new trial, challenging his convictions on grounds of (1) insufficient evidence; (2) ineffective assistance of counsel; (3) admission of impermissible character evidence; (4) prejudicial admonishments from the courtroom deputy; and (5) the improper limitation of examination of a witness.

         We conclude that the evidence was sufficient to support the jury's verdict; trial counsel's performance was reasonable; the trial court committed no error in its admission of testimony; the courtroom deputy's instructions to Allen did not result in prejudice; and any error on the part of the trial court in limiting the witness examination was harmless. Therefore, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the record shows that Allen and Rayciayah Lindsey are the parents of four children, including a daughter, T.A., and a son, L.A. When T.A. was around five or six years old, Allen bit her vagina over her clothing, and she reported this to her maternal aunt. The aunt relayed this to Rayciayah, who demanded that Allen leave the home. Allen moved away from the home for a while, but later returned.

         Then, when T.A. was eight years old, Allen began placing his hands under her clothing and touching her buttocks and vagina. From that time, until T.A. was fifteen years old, Allen had vaginal and anal intercourse with T.A. "so many times that [she] lost count. T.A. did not want Allen to have sex with her, and the acts hurt each time, but because she was scared of Allen, she "took [her] clothes off" "on [her] own" when Allen wanted to have intercourse with her. Allen threatened T.A. that if she told anyone about what was occurring, he would hurt her, L.A., and Rayciayah.

         On one occasion, when the son, L.A., was six years old, he entered his parents' bedroom and saw T.A. lying on her back, with Allen positioned between her legs, with his underwear around his knees. L.A. observed Allen go "up and down" on T.A. T.A. was screaming for Allen to get off of her, and when L.A. attempted to tell Allen to do so, Allen told L.A. to leave the room and later cautioned him that if he told anyone about what he had seen, he would hurt him. T.A. recounted that Allen also hit L.A. after this incident.

         Starting from when L.A. was nine years old, and continuing until he was eleven, Allen had anal sex with him nine times. During the acts, L.A. told Allen to "stop, " but Allen refused, sometimes pushing L.A.'s head into a pillow when he yelled. L.A. made no outcry to his mother because Allen warned him that if he told anyone, he would hurt L.A. or "put [him] in the ground . . . six feet under the ground." L.A. believed that Allen would act on these threats because he had previously seen Allen with a gun. When L.A. later began living with his maternal aunt, he told her about the abuse.

         Between 2012 and 2013, while Allen was not living in the family home, Rayciayah began asking T.A. whether anyone had been touching her. After initially denying that she had been having sex, T.A. implicated her male cousin, rather than Allen, in an attempt to protect Allen. T.A. later admitted that Allen had been having sex with her. The following year, when Allen returned to the home, T.A. told him that a "white man" had sexual contact with her, referring to her friend's father. Allen called the police, and in T.A.'s statement to the officer, given while in Allen's presence, she maintained that a "white man" had sexually assaulted her. Hours later, police returned to the home after they received another call, and T.A. told the officer that her earlier account was untrue, that Allen had been raping her, and that she could not guess the number of times it had occurred. Allen later instructed L.A. to tell T.A. to retract this latter statement to the police.

         A Clayton County grand jury indicted Allen on 18 charges, specifically, six counts of child molestation (OCGA § 16-6-4 (a)), five counts of incest (OCGA § 16-6-22 (a)), [3] three counts of aggravated child molestation (OCGA § 16-6-4 (c)), two counts of rape (OCGA § 16-6-1 (a)), and one count of influencing a witness (OCGA § 16-10-93 (b) (1)). Allen's first trial resulted in a mistrial after defense counsel and the prosecutor learned that T.A. received a medical examination after she made the allegations, the results of which had not been in the State's case file. Allen was retried the following year and was convicted of the influencing-a-witness count.[4] The jury was hung on the remaining counts of the indictment, and the trial court declared a mistrial as to those counts.

         In 2016, when Allen was tried a third time, the jury convicted him on the remaining counts of the indictment, and he received a sentence of life imprisonment. Allen moved for a new trial, and, after a hearing, the trial court denied the motion. This appeal followed.

         1. Allen contends that there was insufficient evidence to support the jury's verdict, given that T.A. implicated different persons as her abuser, and because the State presented no DNA evidence. This argument is meritless.

         "When reviewing a defendant's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence." (Citations omitted.) Lancaster v. State, 291 Ga.App. 347, 348 (662 S.E.2d 181) (2008). "We do not . . . re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt." (Citation omitted.) Hall v. State, 294 Ga.App. 274, 275 (668 S.E.2d 880) (2008).

         The victims testified to the incidents as explicated above, and, even in the absence of DNA evidence, this testimony was sufficient for the jury to convict Allen beyond a reasonable doubt of every charge in the indictment.[5] Tinson v. State, 337 Ga.App. 83, 85-86 (1) (785 S.E.2d 914) (2016) (corroboration of a sexual crime victim's testimony is not required); Mangham v. State, 291 Ga.App. 696, 697 (662 S.E.2d 789) (2008) (testimony sufficient to support guilty verdict on aggravated child molestation although uncorroborated by medical evidence).

         Further, the jury viewed the forensic interviews of the victims, in which they both indicated that Allen had committed the acts. T.A. testified that she did not implicate her father at first because she was "covering up" for him and was scared of him. L.A. also explained that his father had threatened to hurt or kill him if he made any outcry. The forensic interviewer, who was accepted without objection as an expert in forensic interviewing and child advocacy, testified that she had concluded that neither victim had been coached, and that threats like those Allen made to the victims commonly lead to a delay in disclosure of abuse.

         "In any event, it is the jury's role to resolve conflicts in the evidence and determine the credibility of witnesses, and the presence of such conflicts does not render the evidence insufficient." (Citation and footnote omitted.) Malone v. State, 277 Ga.App. 694, 696 (1) (627 S.E.2d 378) (2006); Crane v. State, 291 Ga.App. 414, 415-416 (662 S.E.2d 225) (2008) (evidence sufficient although victim initially offered conflicting accounts regarding whether appellant molested her). Here, it is clear that the jury resolved any conflicts in the evidence adversely to Allen, and we will not disturb the jury's findings in this regard. Accordingly, the evidence authorized the jury to find Allen guilty of the offenses for which he was convicted.

          2. As his second enumeration of error, Allen contends that reversal is warranted because the verdicts were against the weight of the evidence and contrary to the principles of justice and equity. Allen raised this issue before the trial court at the hearing on the motion for new trial, but the trial court declined to exercise its discretion to overturn the jury's verdict. We find no error.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is "contrary to . . . the principles of justice and equity, " OCGA § 5-5-20, or if the verdict is "decidedly and strongly against the weight of the evidence." OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial-commonly known as the "general grounds"-require the trial judge to exercise a "broad discretion to sit as a 'thirteenth juror.'"

(Citation omitted.) Allen v. State, 296 Ga. 738, 741 (2) (770 S.E.2d 625) (2015).

However,
[w]hether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials. Thus, even when an appellant asks this Court to review a trial court's refusal to grant a new trial on the general grounds, this Court must review the case under the standard set forth in Jackson v. Virginia, [supra], that is, if the evidence viewed in the light most favorable to the prosecution, supports the verdict or verdicts. (Citations ...

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